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Sunday, April 22, 2012

The Tennessee Court of Appeals recently released its opinion in Gaw v. The Vanderbilt University, No. M2011-00306-COA-R3-CV (Tenn. Ct. App. Apr. 19, 2012). Here's the summary from the slip opinion, to wit:

This is an appeal from a jury verdict in a medical malpractice case. A surgeon performed a procedure on an infant to repair a birth defect at the defendant hospital. The infant sustained permanent injuries after the surgery. The parents filed suit on the infant’s behalf against the hospital for failing to adhere to the expected standard of care. At the conclusion of trial, the hospital moved for a directed verdict on all claims, with only the claims for informed consent and post-operative negligence being denied. The jury entered a judgment in favor of the infant. The hospital has appealed. We affirm the trial court’s judgment.

This appeal arises from the dismissal of a medical malpractice action due to the plaintiff’s failure to provide a certificate of good faith. All defendants filed Tennessee Rule of Civil Procedure 12.02(6) motions to dismiss the medical malpractice action based upon Tennessee Code Annotated § 29-26-122(a), which provides: “If the certificate is not filed with the complaint, the complaint shall be dismissed, as provided in subsection (c), absent a showing that the failure was due to the failure of the provider to timely provide copies of the claimant’s records requested as provided in § 29-26-121 or demonstrated extraordinary cause.” Because the plaintiff failed to make a showing that the omission was due to the failure of any healthcare provider to provide records or demonstrate extraordinary cause, the trial court granted the motions and dismissed the case. The plaintiff asserts on appeal that the statutory requirement violates the separation of powers clause and that it violates the due process and equal protection guarantees of the constitution of Tennessee by treating plaintiffs in suits for medical negligence differently from plaintiffs in other civil litigation and by allegedly restricting access to the courts. Finding no constitutional infirmities, we affirm.

What is perplexing about this opinion is the fact that the portion of it that deals with the separation-of-powers issue lacks any citation to any law on the subject. It is noteworthy that other states have found such a law clearly unconstitutional based upon a violation of separation of powers. And I don't know if those other decisions were brought to the court's attention or not; or if they were just ignored by the court.

Thursday, April 05, 2012

This is a re-post from a year ago (Apr. 5, 2011). It is good to remind ourselves of what an "injury" is for purposes of medical negligence or malpractice lawsuits.

How is an "injury" defined for purposes of medical malpractice? Here is the definition, to wit:

An injury is defined as any want of skillful care or diligence on a physician's part that sets back a patient's recovery, prolongs the patient's illness, increases the plaintiff's suffering, or, in short, makes the patient's condition worse than if due skill, care, and diligence had been used.